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The Resilience of the Political Constitution

Published online by Cambridge University Press:  06 March 2019

K.D. Ewing

Abstract

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The first part of this paper examines the nature and form of the political constitution, and argues that traditional approaches to its scope and purpose are too narrow in focus: The political constitution is about enabling and empowering government, as well as containing and constraining it; it is also predicated upon a body of core and indeterminate political freedoms (albeit frequently submerged and often displaced). The second part of the paper examines three contestable assumptions about what some claim to be a move from a political to a legal constitution. The first relates to the widespread (but flawed) ideological understanding of the political constitution; the second relates to the capacity of the “legal” to resist capture by the “political;” and the third relates to the effectiveness of the legal to protect political freedom. An attempt is made throughout unusually to illustrate argument with evidence, in this instance about the resilient political constitution.

Type
Part I: The Boundaries of the Conception and Practice of Politics within Political Constitutionalism
Information
German Law Journal , Volume 14 , Issue 12: Special Issue—Political Constitutions , 01 December 2013 , pp. 2111 - 2136
Copyright
Copyright © 2013 by German Law Journal GbR

Footnotes

*

Professor of Public Law, King's College, London, keith.ewing@kcl.ac.uk. I wish to acknowledge the invaluable contribution of Andrew Moretta to this paper.

References

1 For a valuable analysis, see Graham Gee & Grégoire Webber, What is a Political Constitution?, 30 O.J.L.S. 273 (2010).CrossRefGoogle Scholar

2 This much is recognized by Griffith, whose lecture in 1979 forms the starting point of all discussion of the political constitution:Google Scholar

For centuries political philosophers have sought that society in which government is by laws and not by men. It is an unattainable ideal. Written constitutions do not achieve it. Nor do Bills of Rights or any other devices. They merely pass political decisions out of the hands of politicians and into the hands of judges or other persons. To require a supreme court to make certain kinds of political decisions does not make those decisions any less political.

Griffith, J.A.G., The Political Constitution, 42 Mod. L. Rev. 1, 16 (1979).Google Scholar

3 As pointed out by Griffith, much of the ECHR (which forms the basis of the HRA) is the expression of conflict rather than its resolution. Id. at 14.Google Scholar

4 See Donoghue v. Stevenson, [1931] UKHL 3, [1932] A.C. 562 (H.L.) [31] (appeal taken from Scot.) (establishing a rule indistinct from a rule that might be established in a civil code).Google Scholar

5 A timely illustration of the political nature of adjudication—some would argue for multiple reasons—is provided by Animal Defenders International v. United Kingdom, ECHR App. No. 48876/08,. para. 362.Google Scholar

6 Indeed, the modern legal history has been a history of crisis as we lurched from the crisis of the First World War, to the crisis of post war austerity, to the crisis of fascism in the 1930s, to the crisis of the Second World War, to the crisis of the Cold War from the 1940s until the 1980s, to the crisis of Thatcherism in the 1980s, to the financial crisis in the 1990s, to the crisis of the “War on Terror” in the first decade of the twenty first century, and to the crisis of austerity in the second. In other words, there has been a state of perpetual crisis, which now extends to the EU where there is also a cavalier regard for legality in the context of austerity.Google Scholar

7 According to Griffith: “No one nowadays doubts that the Conservative party exists primarily to promote the interests of private capital and the Labour party the interests of organised trade unionism.” Griffith, supra note 2, at 12. This could not be written with such equivocation today, at least in relation to Labour.Google Scholar

8 According to Lord Chancellor Grayling:Google Scholar

The fundamental problem here is that the European Court of Human Rights has moved a long way from the views of the originators of the conventions back in the 1950s. The original European convention on human rights was a laudable document written by conservatives after the holocaust, when Stalin was in power in Russia and people were being sent to the gulags without trial. Over the period since then, the jurisprudence of the European Court of Human Rights has, in my view, moved further and further away from the original intention and purpose of that convention. There is an urgent need for reform of the court and a return to its roots.

Justice Committee, Uncorrected Transcript of Oral Evidence, 2012–13, H.C. 741-i, para. 81 (U.K.), available at http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/uc741-i/uc74101.htm.

9 See Hirst v. United Kingdom (No. 2), ECHR App. No. 74025/01 (Oct. 6, 2005); see also Othman v. United Kingdom, ECHR App. No. 8139/09, (Jan. 17, 2012). On the latter, see K.D. Ewing, What Is the Point of Human Rights Law?, in Examining Critical Perspectives on Human Rights 37 (Rob Dickinson et al. eds., 2012).Google Scholar

10 See also Graham, Gee, The Political Constitutionalism of J.A.G. Griffith, 28 Legal Stud. 20 (2008).Google Scholar

11 Griffith, supra note 2, at 9.Google Scholar

12 Id. at 3.Google Scholar

13 Id. at 5.Google Scholar

14 Miliband, Notably Ralph, The State in Capitalist Society (1969); Ralph Miliband, Capitalist Democracy in Britain (1982).Google Scholar

15 Griffith, supra note 2, at 16.Google Scholar

16 Id. at 6.Google Scholar

17 Id. at 16.Google Scholar

18 Id.; see also Adam Tomkins, Our Republican Constitution (2005).Google Scholar

19 Compare John Mackintosh, The British Cabinet (3d ed., 1977), with John Mackintosh, The Government and Politics of Britain (4th ed., 1977) (expressing exasperation with strong government and indicated support for more legal controls).Google Scholar

20 Compare Tomkins, supra note 18, with Danny Nicol, Professor Tomkins’ House of Mavericks, 2006 Pub. L. 467.Google Scholar

21 A point on which Jennings is especially important. See K.D. Ewing, The Law and the Constitution: Manifesto of the Progressive Party, 67 Mod. L. Rev. 734 (2004).Google Scholar

22 This important dimension is developed most powerfully in Adam Tomkins, In Defence of the Political Constitution, 22 O.J.L.S. 157 (2002). See also Griffith, supra note 2.CrossRefGoogle Scholar

23 See Ewing, supra note 21.Google Scholar

24 See Goldoni, Marco, Two Internal Critiques of Political Constitutionalism, 10 Int'l J. Const. L. 926 (2012); Ralph Miliband, Parliamentary Socialism: A Study in the Politics of Labour (1961); V.I. Lenin, The State and Revolution (1917).Google Scholar

25 See Gee, & Webber, , supra note 1.Google Scholar

26 See generally, J.A.G. Griffith, The Politics of the Judiciary (5th ed. 1997).Google Scholar

27 Griffith, supra note 2, at 15. See also, Ewing, supra note 21 (discussing Jennings on the rule of law). Now, the Constitutional Reform Act 2005, c. 4, s 1 (U.K.), which has a capacity for great menace in the hands of a crusading judge, with a potential to go way beyond the implied restrictions, as suggested in R (Jackson) v. AG, [2005] UKHL 56, [2006] 1 A.C. (H.L.) 262 (appeal taken from Eng.). See also, Lord Bingham, The Rule of Law, 66 Cambridge L.J. 67 (2007).Google Scholar

28 Griffith, supra note 2, at 15.Google Scholar

29 Malone v. Metro. Police Comm'r, *1979+ Ch. 344, [1979] 2 All E.R. 620.Google Scholar

30 See Peter Hennessy, Secret State: Preparing for the Worst 1945–2010 (2010).Google Scholar

31 An important dimension of responsible government is not only that the government should be responsible to Parliament, but also that Parliament should be responsible to the people.Google Scholar

32 Griffith, supra note 2.Google Scholar

33 This idea of the corporate press as a watchdog may need to be revised in the light of the naked use of private power for private ends.Google Scholar

34 Griffith, supra note 2, at 16.Google Scholar

35 See generally, Joan Mahoney, Civil Liberties in Britain During the Cold War: The Role of the Central Government, 33 Am. J. Legal Hist. 53 (1989).CrossRefGoogle Scholar

36 Compare Dennis v. United States, 341 U.S. 494 (1950), with Australian Communist Party v. Commonwealth (1951) 83 CLR 1 (Austl.). The position in the United States changed after 1956: see Yates v. United States, 354 U.S. 298 (1957).Google Scholar

37 See Mahoney, supra note 35 for a full discussion‥Google Scholar

38 This was a stand taken not only by Labour ministers. In May 1954, the Prime Minister was asked in the Commons whether he would cooperate with the governments of Australia and the United States with new anti-communist initiatives. In agreeing that Her Majesty's Government would always give support to “any country in the free world that desires it in seeking to counter the insidious attacks of Communist propaganda,” Mr Churchill continued by saying that: “We must, however, be free in this country to pursue the methods we judge best suited to our traditions and circumstances. They do not seem to have worked too badly so far.” 527 Parl. Deb., H.C. (5th ser.) (1954) 2292 (U.K.).Google Scholar

39 This account draws from Memorandum from Monty Woodhouse (Sept. 27, 1962), and a letter from the Attorney General to the Home Secretary, Sept. 27, 1962). It is a pity that this powerful rhetoric was deployed to protect the racist speech of fascists.Google Scholar

40 The personal files of leading Communists available at the National Archives are a fascinating read, revealing a great deal about the conduct and methods deployed by the Security Service.Google Scholar

41 448 Parl. Deb., H.C. (5th ser.) (1948) 1703 (U.K.).Google Scholar

42 See 448 Parl. Deb., H.C. (5th ser.) (1948) 3418 (U.K.).Google Scholar

43 Indeed, there was no divine intervention that dictated that the work of the Three Advisers should be beyond judicial scrutiny so much as a self-imposed restraint of the courts themselves.Google Scholar

44 See also Radcliffe Comm., Security Procedures in the Public Service, 1962, Cmnd. 1681 (U.K).Google Scholar

45 See David Carlton, Anthony Eden: A Biography (1981), for the views attributed to AJP Taylor, admittedly also a man of the Left.Google Scholar

46 Australian Capital Television Party v. Commonwealth (1992) 177 CLR 106, 135 (Austl.) (quoting Commonwealth v. Kreglinger & Fernau (1926) 37 CLR 393, 413 (Austl.)).Google Scholar

47 Id. at 137 (Mason CJ).Google Scholar

48 Id. at 135 (Mason CJ).Google Scholar

49 Amalgamated Soc'y of Ry. Servants v. Osborne, *1910+ A.C. 87 (H.L.) 106–16 (Lord Shaw of Dunfermline)(citing Edmund Burke, Speech to the Electors of Bristol (Nov. 3, 1774)).Google Scholar

50 See Karl Marx, The Civil War in France (1871) (analyzing the Paris Commune). It is also the case, however, that the recall is not a uniquely Marxist principle, having been adopted by liberal democratic regimes as well, of which California is perhaps the best-known example.Google Scholar

51 Burke, supra note 49.Google Scholar

52 Lord Shaw of Dunfermline, supra note 49 (quoting John Locke, Second Treatise on Civil Government para. 222 (1689)).Google Scholar

53 See Ewing, K.D., Social Rights and Constitutional Law, 1999 Pub. L. 104 [hereinafter Social Rights and Constitutional Law]. See also K.D. Ewing, Economic Rights, in Oxford Handbook of Comparative Constitutional Law 1036 (Michel Rosenfeld & András Sajó eds., 2012) (giving an account of the embedding of social and economic rights in constitutional law, contrasting liberal democratic and social democratic visions).Google Scholar

54 Cabinet Meeting (U.K.), 1 August 1950. One of the other objections to the Convention was that it would prevent the Labour government from taking measures against the Communist Party.Google Scholar

55 See generally Ewing, K.D., A Theory of Democratic Adjudication: Towards a Representative, Accountable and Independent Judiciary, 38 Alta. L. Rev. 708 (2000).Google Scholar

56 I am mindful here of the storm in a teacup manufactured over the Abu Qatada affair in 2012–13.Google Scholar

57 Constitutional Reform Act 2005, c. 4, s 3(1) (U.K.).Google Scholar

58 Id. s 3(6).Google Scholar

59 Theresa, May, It's My Job to Deport Foreigners Who Commit Serious Crime—And I'll Fight Any Judge Who Stands in My Way, Says Home Secretary, Mail Online, Feb. 16, 2013, http://www.dailymail.co.uk/debate/article-2279828/Its-MY-job-deport-foreigners-commit-crime–Ill-fight-judge-stands-way-says-Home-Secretary.html. According to Mrs. May, an unnamed judge asserted “he can ignore the unanimous adoption by the Commons of new immigration rules on the grounds that he thinks this is a ‘weak form of parliamentary scrutiny.'” She found “it difficult to see how that can be squared with the central idea of our constitution, which is that Parliament makes the law, and judges interpret what that law is and make sure the executive complies with it.” As a first year student might pick up, Mrs. May's understanding of the constitution seemed rather contestable.Google Scholar

60 It is to be regretted that the correspondence that is presumed to exist was not made public, as a reminder of “the existing constitutional principle of the rule of law,” to say nothing of “the Lord Chancellor's existing constitutional role in relation to that principle.” Constitutional Reform Act 2005, c. 4, s 1(a)–(b).Google Scholar

61 For more information, see http://www.justice.gov.uk/about/cbr.Google Scholar

62 The only non-Q.C. member (apart from the Chair) resigned before the Commission reported. See Conal Urquhart, Bill of Rights Commissioner Resigns over Bypass of Commons, The Guardian, Mar. 11 2012, http://www.theguardian.com/law/2012/mar/11/uk-bill-of-rights-kenneth-clarke.Google Scholar

63 British Bill of Rights Commission Fails to Reach Agreement, BBC News, Dec. 18 2012, http://www.bbc.co.uk/news/uk-politics-20757384.Google Scholar

64 High Level Conference on the Future of the European Court of Human Rights, Apr. 19–20, 2012, Brighton Declaration, available at http://hub.coe.int/20120419-brighton-declaration.Google Scholar

65 Joshua Rozenberg, Draft Brighton Declaration Is a Breath of Fresh Air, The Guardian, Apr. 19, 2012, http://www.theguardian.com/law/2012/apr/19/draft-brighton-declaration-sensible.Google Scholar

66 Thus:Google Scholar

[A]n application should be regarded as manifestly ill-founded within the meaning of Article 35(3)(a), inter alia, to the extent that the Court considers that the application raises a complaint that has been duly considered by a domestic court applying the rights guaranteed by the Convention in light of well-established case law of the Court including on the margin of appreciation as appropriate, unless the Court finds that the application raises a serious question affecting the interpretation or application of the Convention; and encourages the Court to have regard to the need to take a strict and consistent approach in declaring such applications inadmissible, clarifying its case law to this effect as necessary.

Brighton Declaration, supra note 64, s 15(d).

67 Moreover, “*t+he margin of appreciation goes hand in hand with supervision under the Convention system. In this respect, the role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State's margin of appreciation.” Eur. Parl. Ass., Draft Protocol 15 Amending the Convention for the Protection of Human Rights and Fundamental Freedoms—Explanatory Report, Doc. No. 13093, para. 9 (2013).Google Scholar

68 Recommendation CM/Rec (2010)12 of the Committee of Ministers to Member States on Judges: Independence, Efficiency and Responsibilities, Comm. of Ministers, https://wcd.coe.int/ViewDoc.jsp?id=1707137 (last visited Nov. 12, 2013).Google Scholar

69 There is also an explosive issue that will have to wait for another day that straddles considerations of “capture” and “effectiveness,” which is simply the refusal of the government to implement Court decisions. How many prisoners have now been denied their human right to vote and on how many occasions? Not only does this raise the ultimate question of the futility of the HRA, but it also raises even more fundamental questions about the Constitutional Reform Act 2005, s 1. What now for the “existing constitutional principle of the rule of law”?Google Scholar

70 See, e.g., Associated Newspapers Ltd. v. HRH Prince of Wales, [2006] EWCA (Civ) 1776, [2008] Ch. 57 (Eng.)Google Scholar

71 Griffith, supra note 26.Google Scholar

72 Ewing, K.D., The Politics of the British Constitution, 2000 Pub. L. 405.Google Scholar

73 Demir v. Turkey, ECHR App. No. 34503/97, 2008 Eur. Ct. H.R. On this case, see generally K.D. Ewing & John Hendy Q.C., The Dramatic Implications of Demir and Baycara, 39 Indus. L.J. 2 (2010).CrossRefGoogle Scholar

74 Mantouvalou, Virginia, Labour Rights in the European Convention on Human Rights: An Intellectual Justification for an Integrated Approach to Interpretation, 13 Hum. Rts. L. Rev. 529 (2013).CrossRefGoogle Scholar

75 Ewing, Social Rights and Constitutional Law, supra note 53.Google Scholar

76 Metrobus Ltd. v. Unite the Union, [2009] EWCA (Civ) 829, [56] (Eng.). See also Ruth Dukes, The Right to Strike Under UK Law: Not Much More Than a Slogan?, 39 Indus. L.J. 82 (2010). For a gentle corrective, see Nat'l Union of Rail, Mar. & Transp. Workers v. Serco Ltd. [2011] EWCA (Civ) 226.Google Scholar

77 Gillan v. United Kingdom, ECHR App. No. 4158/05, 2010 Eur. Ct. H.R.Google Scholar

78 See id., para 79.Google Scholar

79 R (Gillan & Quinton) v. Metro. Police Comm'r, *2006+ UKHL 12 (H.L) *74+ (appeal taken from Eng.).Google Scholar

80 See Terrorism Act 2000, c. 11, s 47A(5) (amended by the Protection of Freedoms Act, 2012, c. 9, s 61) (“But the power conferred by such an authorisation may be exercised whether or not the constable reasonably suspects that there is such evidence.”). Cf. Terrorism Act 2000, c. 11, s 45(1)(b) (permitting the power of stop and search to be exercised “whether or not the constable has grounds for suspecting the presence of articles of that kind”), available at http://www.legislation.gov.uk/ukpga/2000/11/pdfs/ukpga_20000011_en.pdf.Google Scholar